ost Book Club: Justifying IP -- Putting the Horse Before Descartes

In this, my final response to the many interesting posts in my book, I
want to traverse some comments that John Duffy made. To the other
authors of posts, especially those who wrote reactions to my responses
-- we will have to continue offline. I have taken too much space
already. And the many readers of Prawfsblawg who care nothing for IP are
I am sure tired of all this.

I am going to skip over the blush-inducing praise in John's post, and get right to his main point. He says:

" [I]f we are frustrated with the complexities of economic theories
and are searching for a more solid foundation for justifying the rules
of intellectual property, is Kant (or Locke or Rawls or Nozick) really
going to help lead us out of the wilderness?"

John says no. He says further that just as Descartes' doubts drove
him to embrace foundations that were thoroughly unhelpful when it came
to elucidating actual physical reality, such as planetary motion, so my
doubt-induced search for solid foundations will lead nowhere (at best),
and maybe to some very bad places (at worst).

This argument may be seen to resolve to a simple point, one often
made in legal theory circles: "It takes a theory to beat a theory."
(Lawrence Solum has an excellent entry on this topic in his Legal Theory
Lexicon, posted on his Legal Theory Blog some time back.) The idea here
is that utilitarian theory is a true theory, because it is capable of
proof or refutation and because it guides inquiry in ways that could
lead to better predictions about the real world. By this criterion,
deontic theories are not real theories because they cannot be either
proven or refuted. Einstein's famous quip comes to mind; after a
presentation by another scientist, Einstein supposedly said "Well, he
wasn't right. But what's worse is, he wasn't even wrong."

My response starts with some stark facts. We do not know whether IP
law is net social welfare positive. Yet many of us feel strongly that
this body of law, this social and legal institution, has a place in a
well-functioning society. Now ,we can say the data are not all in yet,
but we nevertheless should maintain our IP system on the hope that
someday we will have adequate data to justify it. The problem with this
approach is, where does that leave us in the interim? We could say that
we will adhere to utilitarian theory because it stands the best chance
of justifying our field at some future date -- when adequate data are in
hand. But meanwhile, what is our status? We are adhering, we say, to a
theory that may someday prove true. By its own criteria it is not true
today, not to the level of certainty we require of it (and that it in
some sense requires of itself.) But because it will be "more true" than
other theories on that magic day when convincing data finally arrive, we
should stick to it.

My approach was to turn this all upside-down, I started with the fact
that the data are not adequate at this time. And I admitted that I
nevertheless felt strongly that IP makes sense as a field; that it seems
warranted and even necessary as a social institition. So it was on
account of these facts that I began my search for a better theoretical
foundation for IP law.

If you have followed me so far, you will not be surprised when I say
that for me, Locke, Kant and Rawls better account for the facts as I
find them than other theries -- including utilitarianism. Deontic
considerations explain, to me at least, why we have an IP system in the
absence of convincing empirical evidence regarding net social welfare.
Put simply: We have IP, regardless of its (proven) effect on social
welfare -- so maybe (I said to myself) *it's not ultimately about social
welfare*.

This is the sense in which, to me, deontic theory provides a "better"
theory of IP law. It fits the facts in hand today, including the
inconvenient fact of the absence of facts. Of course, we may learn in
years to come that the utilitarian case can be made convincingly. I
explicitly provide for this in JIP, when I say that there is "room at
the bottom," at the foundational level, for different ultimate
foundations and even new ultimate foundations. It's just that for me,
given the current data, I cannot today make that case convincingly. And
it would be a strange empirically-based theory that asks me to ignore
this key piece of factual information in adopting foundations for the
field. To those who say deontic theories cannot be either proven or
disproven, I offer the aforementioned facts, and say in effect that an
amalgam of deontic theory does a better job explaining why we have IP
law than other theories. And therefore that it is in this sense "more
true" than utilitarian theory. Again, it fits the facts that (1) we do
not have adequate data about net social welfare; and (2) we nevertheless
feel IP is an important social institution in our society and perhaps
any society that claims to believe in individual autonomy, rewards for
deserving effort, and basic fairness.

One final point: to connect Kant with Hegel with Marx, as John does,
is a legitimate move philosophically. But I have to add that for many
interpreters of Marx, he is the ultimate utilitarian. What is
materialism, as in Marxist historical materialism, but a system that
makes radically egalitarian economic outcomes the paramount concern of
the state? The famous suppression of individual differences and
individual rights under much of applied Marxist theory represents the
full working out of the utilitarian program under which all individuals
can be reduced to their economic needs, and all government can be
reduced to a mechanistic system for meeting those needs (as equally as
possible)? If we are going to worry about where our preferred theories
might lead if they get into the wrong hands, I'll take Locke and Kant
and Rawls any day. In at least one form, radical utilitarian-materialism
has already caused enough trouble.

This is hardly all there is to say, but it is all I have time to say.
So I will keep plodding along, like a steady plow horse, trying not
only to sort out the foundational issues, but also to engage in policy
discussion and doctrinal analysis. And with this image I close, having
once again put the (plow) horse before Descartes in the world of IP
theory.